While many companies may have a drug testing program for employees in place, there are times that these programs are administered incorrectly. These issues or deficiencies in the program may have started at the very beginning of implementation. Therefore, it is important that when an employer (regardless of size) considers implementing a drug-free workplace testing program, they have exercised due diligence in developing the entire program from the company policy: who’s tested, when they’re tested, the selection of the testing facility and what action will result if an employee tests positive.
An employer has the right to be a drug-free workplace and the courts throughout Florida, and in fact throughout the nation, continuously support this position.
Consideration 1 – The Policy
When considering and implementing a drug-free workplace program, it is absolutely imperative that an employer create and distribute the drug-free workplace policy in writing to current and future employees, and employers should obtain a signature acknowledging receipt of the policy. The policy should contain a statement of the employers’ commitment to being a drug-free workplace, the circumstances in which an employee or applicant will be tested, what type of test is administered, and what the result will be if an employee tests positive (termination, second chance, etc.). Taking adverse action for a positive test when no written policy exists can cause an employer potential liability and is a poor employment business practice.
Consideration 2 – When to Test
Most employers test for pre-employment or when a conditional offer of employment is made. However, another type of testing is random testing. Many employers conduct random testing on current employees through a random selection program. A random testing program reduces the use of illegal drugs once an employee is hired. Other types of testing needs include post-accident (an employee is injured on the job or while operating company equipment), or reasonable suspicion. Whether an employer tests for one or all of these circumstances, it should always be explained in part of the written drug and alcohol policy.
Consideration 3 – Selecting a Testing Method
Another consideration for employers when developing and implementing a drug-free workplace policy is selecting what type of testing method to implement, choosing between urine or hair testing? The answer to this question generally relates to two factors – how far back an employer wants to go relating to the detection period, and the cost factor of urine vs. hair. The detection period for urine is generally 1-5 days and the detection period for hair can be up to 90 days. The testing method should also be clearly stated in the company’s drug and alcohol policy, and adhered to. An employer should not state they do one sort of testing and then surprise an employee with a different one.
Consideration 4 – An Employee Tested Positive, What Now?
Once again, what does the policy say? An employer has the right to be a drug-free workplace and the courts throughout Florida, and in fact throughout the nation, continuously support this position. However, it is important that employers clearly define via company policy what action will be taken if a drug or alcohol test is positive.
While many employers have a strict policy of termination, others provide a “second chance provision,” allowing the employee to continue with the company while also submitting to unannounced drug testing. It should be understood that no employee is obligated to provide a second chance policy, but whatever action is taken (termination or second chance), the policy must be consistent – if you give a second chance to Bob, you must also give a second chance to Mary. Consistency is crucial to a successful drug-free workplace program.
Consideration 5 - Benefits of a Drug-Free Workplace
The U.S. Department of Labor over the years has consistently demonstrated that being a drug-free workplace provides many benefits. These benefits include a reduction in worker compensation claims, a reduction in absenteeism and tardiness, improved employee morale and an enhancement to customer service. Employees that are drug-free make better employees. In addition, in the state of Florida, employers who qualify as a drug-free workplace can receive a discount on their workers compensation rates, which can result in significant savings for many companies.